In Florida, any person accepting the privilege to drive a motor vehicle gives his or her consent to submit to a lawful breath, blood or urine test for the purpose of detecting alcohol, controlled substances or chemical substances. Therefore, a driver arrested for DUI who refuses to submit to such lawful testing whose driving privilege was previously suspended for a prior refusal to submit to a lawful breath, blood or urine sample commits a first degree misdemeanor. The crime of Refusal to Submit to Testing is a separate crime from DUI.

Penalties for Refusal to Submit To Testing

Pursuant to Florida Statute 316.1939, Refusal to Submit to Testing is a first degree misdemeanor. First degree misdemeanors are punishable by up to 1 year of probation, 1 year of county jail as a condition of probation, and a $1,000 fine. Additionally, if the driver was previously arrested for DUI, and refused a lawful breath, blood or urine test, then the driver’s license gets suspended for 18 months for the subsequent refusal.

What Must the State Prove?

The State must prove the following six elements beyond a reasonable doubt to convict the defendant of Refusal to Submit to Testing:

A law enforcement officer had probable cause to believe the defendant either drove or was in actual physical control of a motor vehicle in Florida while either:

Under the influence of alcohol, a chemical substance listed in Florida Statute 877.111, or a controlled substance listed in Chapter 893 to the extent the defendant’s normal faculties were impaired, or;

The defendant’s breath or blood alcohol level was a .08 or higher.

That:

The law enforcement officer arrested the defendant for driving under the influence, or;

The law enforcement officer requested a blood test. (Applicable where the defendant appeared for treatment at a hospital, clinic or other medical facility and the administration of a breath or urine test was impractical or impossible).

Defendant was informed that if he or she refused to submit to a chemical or physical test of his or her breath, blood or urine that his or her privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second of subsequent refusal, for a period of 18 months.

Defendant was informed that it is a misdemeanor to refuse to submit to a lawful test of his or her breath, blood, or urine if his or her driving privilege had been previously suspended for a prior refusal to submit to lawful test of his or her breath, blood or urine.

Defendant, after being so informed, refused to submit to a chemical or physical test of his or her breath, blood or urine when requested to do so by a law enforcement officer or correctional officer.

Defendant’s driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his or her breath, blood or urine.

What is a motor vehicle?

Motor vehicle means any self-propelled vehicle not operated upon rails or guide way, but not including any bicycle, motorized scooter electric personal assistive mobility device or moped. Therefore, a person riding a bicycle while under the influence of alcohol, a controlled substance or a chemical substance can be convicted of DUI, but cannot be convicted of refusing to submit to testing because a bicycle is not a motor vehicle.

What is probable cause?

Probable cause exists where the totality of the circumstances, from the perspective of the law enforcement officer’s knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed. Therefore, the State would need to prove beyond a reasonable doubt that the officer had probable cause to make the arrest for DUI.

What is actual physical control?

Actual physical control means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether he or she is actually operating the vehicle at the time. For example, attempting to “sleep it off” in the backseat is an example of being in actual physical control of the vehicle if the key to the vehicle is accessible.

If you have been arrested for Refusal to Submit to Testing, please do not hesitate to contact a
Palm Beach DUI attorney at Bottari & Doyle for a Free Consultation.